Plaintiffs Tanya Svoboda and Antonella Ortiz Colosi used Amazon's Virtual Try-On feature on its mobile website and app to virtually test makeup and eyewear products. This feature captures a user's facial geometry to overlay digital products on their image. The plaintiffs alleged that Amazon violated the Illinois Biometric Information Privacy Act (BIPA) by collecting this biometric data without providing the required written notice, explaining the retention period, or obtaining a signed written release. They also alleged Amazon failed to establish a written policy for data retention and destruction. The district court certified a class consisting of all individuals who used the Virtual Try-On feature on Amazon's mobile platform while in Illinois after September 7, 2016. Amazon appealed, arguing that individual questions regarding where users were located when they used the feature, as well as affirmative defenses, predominated over common questions, making class certification improper.
The Seventh Circuit applied an abuse of discretion standard to review the district court's class certification decision. The court focused on Rule 23(b)(3), which requires that common questions of law or fact predominate over individual ones and that a class action be superior to other methods of adjudication. The court acknowledged that BIPA requires proof that the violation occurred in Illinois, which is an individual question. However, the court held that this does not defeat predominance. The record showed that Amazon maintains data including billing addresses, IP addresses, and geolocation information that can be used to prove location for many class members. For those where data is insufficient, individual affidavits can be used. The court reasoned that individual inquiries into location are manageable and do not overwhelm the common questions regarding Amazon's liability for its uniform data collection practices. The court cited Supreme Court precedent stating that a class action does not require every element of a claim to be resolved on a classwide basis, provided the common questions generate significant efficiencies. Regarding affirmative defenses like consent or failure to mitigate, the court noted that consent was a common question because all users opted in via a uniform 'try on' button, and other defenses could be handled in a separate phase of litigation. Finally, the court addressed the superiority requirement, noting that the high costs of expert discovery and the complexity of the case make individual lawsuits impractical, even if potential damages are high. The district court retains the discretion to reduce damages if they become unconstitutionally punitive.
The case proceeds as a certified class action in federal court. Amazon must now defend against the allegations that its Virtual Try-On feature violated BIPA Sections 15(a) and 15(b). The court's decision clarifies that individual proof of location is not a bar to class certification if the data is manageable. The district court will now oversee the merits of the case, including the calculation of statutory damages, which could be significant given the size of the class, though the court noted it has the power to reduce awards if they are unconstitutionally excessive. The 2024 amendment to BIPA capping damages for repeated violations of the same type from the same person was noted but not decided, as it does not affect the class certification ruling.
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